Kozak v Ehrhardt [No 2] - [2023] WASCA 28

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KOZAK -v- EHRHARDT [No 2] [2023] WASCA 28
CORAM:   MITCHELL JA
HALL JA

HEARD:   9 FEBRUARY 2023
DELIVERED          :   9 FEBRUARY 2023
PUBLISHED           :   10 FEBRUARY 2023
FILE NO/S:   CACV 77 of 2022
BETWEEN:   JAMES KOZAK
Appellant
AND
CATHERINE CHRISTINE EHRHARDT
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   APP 27 of 2022

Catchwords:

Appeal - Where misconduct restraining orders set aside by primary judge on the ground that the original hearing was procedurally unfair - Whether primary judge arguably erred in ordering the case to be remitted for a new hearing - Whether grounds of appeal challenging the remittal order have any reasonable prospect of succeeding

Legislation:

Restraining Orders Act 1997 (WA), s 34, s 44B

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	C Breheny

Solicitors:

Appellant	:	In person
Respondent	:	Barry Nilsson Lawyers (WA)

Case(s) referred to in decision(s):

Kozak v Ehrhardt [2022] WASCA 165
Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274
Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182; (2012) 84 NSWLR 523

REASONS OF THE COURT:

At the hearing of this matter on 9 February 2023, we ordered that the appeal be dismissed for reasons to be published later. These are our reasons for dismissing the appeal.

Background

The following background is taken from this court's recent reasons for dismissing a stay application brought by the appellant.[1]
[1] Kozak v Ehrhardt [2022] WASCA 165 (Stay decision).
On 13 January 2022, the Magistrates Court made a misconduct restraining order (MRO) against the appellant in favour of the respondent. The MRO was for a duration of 12 months. It included a requirement that the appellant must not:
[R]efer to the [respondent] by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any offensive manner to the [respondent].
The grounds for making an MRO are provided for in s 34 of the Restraining Orders Act 1997 (WA), which relevantly states:
A court may make an MRO if it is satisfied that -
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; …
and
(b)granting an MRO is appropriate in the circumstances.
The respondent's MRO application was supported by an affidavit of the respondent sworn on 15 November 2021.[2] The affidavit deposed to the appellant having published many posts containing offensive material concerning the respondent on two Facebook pages. The respondent, who is a member of a local government council, deposed to feeling offended, humiliated and intimidated, with particular reference to the publication of her address and the publication of images of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kozak v Ehrhardt [No 2]

Details

AGLC: Kozak v Ehrhardt [No 2] [2023] WASCA 28
Case: [2023] WASCA 28
Decision Date

CaseChat Overview and Summary

In Kozak v Ehrhardt [No 2], the appellant, James Kozak, appealed against the decision of the District Court of Western Australia which remitted the respondent's application for a misconduct restraining order (MRO) to the Magistrates Court. The primary judge had set aside the MRO on the ground that the original hearing was procedurally unfair due to the appellant not being provided with a copy of the respondent's affidavit as required by statute. The primary judge then ordered a new hearing of the application before a different magistrate.

The legal issues in this appeal were whether the primary judge erred in setting aside the MRO, finding the respondent's affidavit compliant with statutory requirements, and ordering a new hearing of the MRO application. The Court of Appeal found that none of the grounds of appeal had any reasonable prospect of success. The primary judge's decision to remit the application for a new hearing was appropriate where it could not be concluded that the application was doomed to fail but the primary judge was not in a position to himself determine the MRO application. The contested factual allegations relied upon by the appellant were appropriately determined at the new hearing in the Magistrates Court rather than on appeal. The merit of the appellant's abuse of process contentions was appropriately assessed by the Magistrates Court in the fresh hearing and determination of the MRO application.

Accordingly, the appeal was dismissed and the order remitting the MRO application to the Magistrates Court was upheld. The Court of Appeal found that the primary judge's remittal order did not prevent the appellant from seeking to have the MRO application dismissed in the Magistrates Court on the basis of an asserted abuse of process. The contested nature of the allegations and absence of factual findings after hearing evidence meant it would not be appropriate for the Court of Appeal to attempt to resolve the factual contest on an appeal hearing.

Orders